Halt the Activist NLRB's Efforts to Ease Unionization of Businesses

TIA pushed back hard against the “card check” legislation that would have made it far easier for workers belonging to any business to unionize. The legislation failed to pass in the 113th Congress, however, the National Labor Relations Board (NLRB) has been attempting to negate our success with several rulemaking changes to the governing regulations. TIA is an active member of the Coalition for a Democratic Workplace (CDW), which is coordinating responses to the NLRB’s efforts.

Likely due to the failure of the card check legislation, a series of initiatives are being considered by both the NLRB and the Department of Labor (DOL). These initiatives include the following:

On December 22, 2010, the National Labor Relations Board issued a Final Rule that requires all employers subject to the National Labor Relations Act (NLRA), which is almost every private employer, to post a notice in the workplace about the right to organize a union under the National Labor Relations Act. The CDW believes that the notice is unnecessary, biased and beyond the Board’s authority to require, and on September 26, 2011, filed a lawsuit in opposition.

On June 22, 2011, the NLRB published a Notice of Proposed Rulemaking (NPRM) setting forth new procedures for “conducting a secret ballot election to determine if employees wish to be represented for purposes of collective bargaining.” According to most interpretations, these new procedures could result in union representation elections held within 10-21 days of a union petition. In 2010, the average time to an election was 31 days, with a target median of 45 days. An immediate concern is that so-called ‘snap’ elections can prevent employees from making an informed decision about union representation by limiting information about the union trying to organize them and unions in general.

Almost simultaneously, the Department of Labor’s (DOL) Office of Labor-Management Standards (OLMS) published an NPRM to reinterpret what constitutes “persuader” activity under the Labor- Management Reporting and Disclosure Act (LMRDA), by greatly expanding what exactly employers and consultants would need to report about communications with employees about unions. The proposal will make it more difficult for businesses, particularly small ones, to get advice on critical aspects of labor relations, including legal advice.

During an early January recess, President Obama appointed Democratic union lawyer Richard Griffin, Democratic Labor Department official Sharon Block, and Republican NLRB lawyer Terence Flynn to the NLRB. TIA and the CDW believe the recess appointments are unconstitutional and on January 13 filed a motion to amend our earlier lawsuit to ask the court to allow us to add a count challenging the authority of the NLRB to implement or enforce the rule with only two members.

TIA is an active participant in the Coalition for a Democratic Workplace. We are signatories to numerous letters to members of Congress and have specifically requested support for the Workforce Democracy and Fairness Act, H.R. 1768, which would address the NLRB’s radical campaign to use executive action to implement key portions of its agenda. We also sent out an Action Alert to all AAIA members to bolster our efforts with grassroots participation.

TIA urges legislators to oppose the actions of the NLRB because they would:

Deny employees the time and information necessary to make fair and informed decisions;

Make it more difficult for businesses to get advice on critical aspects of labor relations; and,

Severely limit the ability of companies to make business decisions that could create needed jobs in communities around the country.

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